Citation Nr: 1336807 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 10-40 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased initial rating for bilateral hearing loss, currently evaluated as 10 percent disabling. 2. Entitlement to an increased initial rating for bilateral tinnitus, currently evaluated as 0 percent disabling. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had service in the Marine Corps from September 1967 to October 1967 and in the Army from May 1974 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Entitlement to service connection for bilateral hearing loss and tinnitus had been granted in a July 2008 Board decision. The Veteran testified before the Board in March 2012. A transcript is of record. FINDINGS OF FACT 1. Bilateral hearing loss disability has been manifested, by Level IV hearing loss in the right ear and Level III in the left ear throughout the appeal period. 2. The baseline level of severity of the Veteran's pre-existing tinnitus was established by medical evidence as 10 percent disabling before the onset of any aggravation caused by his subsequent period of service. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100 (2013). 2. The criteria for a compensable evaluation for tinnitus have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). This appeal arises from disagreement with the initial rating following the grant of service connection. Once service connection is granted, the claim is substantiated, additional VCAA notice is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). There has also been compliance with the VCAA assistance requirements. The record in this case includes service treatment records, VA and private treatment records, and lay evidence. The record includes VA examinations in February 2004, July 2010 and July 2012 which include the findings needed to rate the hearing loss disability in accordance with the requirements of 38 C.F.R. §§ 4.85, 4.86. It also included a description of the functional effects caused by a hearing disability as required by Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). There is no indication of any other evidence that would be reasonably likely to substantiate entitlement to higher initial ratings, further assistance is therefore unnecessary. 38 C.F.R. § 3.159(c). II. Factual Background Historically the Veteran enlisted in September 1967. In an ENT evaluation on October 9, 1967, he reported a pre-service history of tinnitus and exposure to gunfire while hunting. The ENT clinic reported an impression of audiogram consistent with bilateral high frequency hearing loss, and probably secondary to gunfire while hunting. A Medical Board dated October 17, 1967, found the Veteran to have bilateral neurosensory hearing loss permanent in nature that was not due to his own misconduct, not incurred in line of duty, and existed prior to service. The Veteran was thereupon issued an honorable discharge reflecting erroneous enlistment and stating that he did not meet minimum physical standards for enlistment. His total time in service in the Marine Corps was 22 days. He attempted to re-enlist in May 1974. Service treatment records from his brief one-month period of Army service note a clinical impression of mild noise-induced bilateral sensorineural hearing loss. He was discharged in June 1974. The Veteran relates in his notice of disagreement dated in October 2001 that he was determined to "sneak" into the Army because he was unemployed; he passed the hearing test by watching the persons around him and pressing the button when they did. The Army subsequently became aware of his Marine Corps discharge and determined to discharge him for fraudulent enlistment, but gave him an honorable (versus a general) discharge so as to not blemish the character of the prior service. The Veteran filed a claim for service connection in August 2000 asserting that he had hearing loss and small constant ringing in his ears prior to service, but during air travel from Mississippi to Parris Island he was seated next to the propeller of the aircraft and noticed a great increase in the intensity of the tinnitus and the severity of the hearing loss. A February 2004 VA audiology report revealed pure tone thresholds, in decibels (dB), were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 25 80 90 LEFT 25 40 85 90 Average pure tone thresholds were 55 dB for the right ear and 60 dB for the left ear. Speech recognition scores were 76 percent right ear and 84 percent left ear. The Veteran reported decreased hearing since 1967 and constant bilateral tinnitus. In a July 2010 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 35 85 95 LEFT 35 50 90 95 Average pure tone thresholds were 60 dB for the right ear and 68 dB for the left ear. Speech audiometry as measured by the Maryland CNC revealed speech recognition scores of 76 percent in the right ear and 86 percent in the left ear. The diagnosis was bilateral and symmetrical high frequency hearing loss. In a February 2012 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 35 80 90 LEFT 25 55 85 95 Average pure tone thresholds were 59 dB for the right ear and 65 dB for the left ear. Speech audiometry as measured by the Maryland CNC revealed speech recognition scores of 86 percent in the right ear and 84 percent in the left ear. The diagnosis was bilateral and symmetrical high frequency hearing loss. III. Bilateral hearing loss, analysis Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2013). VA must interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately compensate the elements of disability. 38 C.F.R. § 4.2 (2013). VA will also resolve any reasonable doubt regarding the degree of disability in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3 (2013). Where there is a question as to which of two ratings applies, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The severity of hearing loss is determined by comparison of audiometric test results with specific criteria. 38 C.F.R. § 4.85, Diagnostic Codes 6100-6110. Ratings for bilateral defective hearing range from 0 percent to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. The Schedule allows for audiometric test results to be translated into a numeric designation ranging from Level I to Level XI, for profound deafness, in order to rate the degree of disability from bilateral service-connected defective hearing. The ratings derived from the Schedule are intended to make proper allowance for improvement by hearing aids. In addition, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations are to be conducted without the use of hearing aids. 38 C.F.R. § 4.85. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86 (2013). Further, when the average puretone threshold is 30 decibels at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (2013). Furthermore, in Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2009). VA must also evaluate functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. 38 C.F.R. § 4.10 (2013). In considering the evidence of record under the laws and records as set forth above, the Board concludes that the Veteran is not entitled to an evaluation for his bilateral hearing loss greater than the currently assigned 10 percent, under 38 C.F.R. §§ 4.85 or 4.86, Diagnostic Code 6100. In this regard, the results of the VA examination in February 2004 reflect Level V hearing in the right ear and Level III hearing in the left ear. The July 2010 examination reflects Level IV hearing in the right ear and Level III in the left ear. The February 2012 examination reflects Level III hearing in the right ear and Level III hearing in the left ear. The Board notes that the February 2004 and July 2010 examinations correspond to a 10 percent rating pursuant to Table VII. The 2012 examination corresponds to a noncompensable rating pursuant to Table VII. The evidence of record does not show that the Veteran had hearing loss that approximated the criteria for a 20 percent rating. The Board has also considered whether a higher evaluation for hearing loss is warranted under 38 C.F.R. § 4.86. The Veteran's disability, however, did not meet the requirements of 38 C.F.R. § 4.86. In this regard, the Veteran did not have puretone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 hertz or a puretone threshold of 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz. As such, it is apparent that the currently assigned 10 percent disability evaluation for the Veteran's bilateral hearing loss is accurate and appropriately reflects his hearing loss under the provisions of 38 C.F.R. §§ 4.85 and 4.86(a). Thus, because the criteria for a rating in excess of the currently assigned 10 percent disability evaluation for the Veteran's bilateral hearing loss have not been met, the appeal is denied. IV. Increased compensable rating for tinnitus, analysis Tinnitus is evaluated under Diagnostic Code 6260 and assigned a single 10 percent schedular rating, whether tinnitus is perceived as being in one ear or each ear or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note 2 (2013). In Smith v. Nicholson, 451 F.3d 1344, 1350-51 (Fed. Cir. June 19, 2006), the Federal Circuit affirmed VA's long-standing interpretation of Diagnostic Code 6260 that only a single 10 percent schedular rating for tinnitus is assignable, whether the tinnitus is perceived unilaterally or bilaterally. Entitlement to service connection for tinnitus was granted by rating action in August 2008. In making that determination, the RO noted that tinnitus existed prior to military service, and permanently worsened as a result of service. The difference between disability evaluations before and after military service determines the degree of disability subject to service connection. Prior to service, tinnitus is considered 10 percent disabling based on evidence that showed the Veteran had tinnitus prior to service. Following military discharge, the disability is considered 10 percent disabling because this is the maximum evaluation for this disability under the Code. The preservice percentage is always deducted before assigning any service-connected evaluation less than 100 percent. Subsequently the RO deducted the 10 percent pre-existing level of disability from the tinnitus thus leaving a noncompensable rating for tinnitus. The Board notes that the provisions of 38 C.F.R. § 3.310 were amended, effective October 20, 2006, to conform to the holding in Allen v. Brown, 7 Vet. App. 439 (1995). See 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). Effective October 10, 2006, the section heading of 38 C.F.R. § 3.310 was retitled "Disabilities that are proximately due to, or aggravated by, service-connected disease or injury," and the text amended to include the following paragraph: (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR, part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice and thus suggests that the recent change amounts to a substantive change in the regulation. As for the current severity of the Veteran's tinnitus, the Board notes that the baseline level of severity of the Veteran's tinnitus was established by medical evidence as 10 percent disabling before the onset of any aggravation caused by his subsequent period of service. As no more than a 10 percent rating is allowed for tinnitus, any aggravation over the established 10 percent disabling baseline level of severity of the Veteran's tinnitus in noncompensable. V. Extraschedular considerations Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. 38 C.F.R. §§ 4.20, 4.27 (2013). Because, however, the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. Nonetheless, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability are inadequate. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned scheduler evaluation is, therefore, adequate, and no referral is required. The Veteran's service-connected bilateral hearing loss is evaluated as impairment of auditory acuity pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100, the criteria of which is found by the Board to specifically contemplate the levels of occupational and social impairment caused by this disability. The rating criteria contemplate the disability resulting from impaired hearing. The Veteran has not reported symptoms that are not contemplated by the rating schedule. When comparing the Veteran's bilateral hearing loss and tinnitus disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's disabilities are congruent with the rating criteria. As discussed, the weight of the evidence is against the claims. Because the evidence is not in at least equipoise, reasonable doubt does not arise and the appeal as to an increased rating in excess of 10 percent for bilateral hearing loss and an increased compensable rating for tinnitus is denied. 38 U.S.C.A. § 5107(b). ORDER An increased rating for bilateral hearing loss, currently rated as 10 percent is denied. An increased compensable rating for tinnitus is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs